Media group’s star journalist get key injunction buying time for conglomerate, this time for good

It’s over. President Cristina Fernández de Kirchner will not be able to split up the Clarín Group before she steps down from office.

Judge Pablo Cayssials yesterday issued an injunction freezing the forced divestment of the country’s largest media conglomerate, as ordered in October by the AFSCA media watchdog, following a claim by a number of the group’s journalists.

The judge even resorted to biological imagery to stress that the legal feud between the government and the country’s largest media conglomerate is only getting started, saying the case was still in the “larval stage.”

The AFSCA, led by Martín Sabbatella, “began the forced divestment process... without a previous notice that would have allowed the affected group to comment on it,” the judge said. That means resolution 1121/14 “may affect the freedom of expression” of the journalists who filed the lawsuit requesting the injunction.

This is the second preliminary injunction granted to the media group led by CEO Héctor Magnetto: a similar one was issued in November by Civil and Commercial Judge Horacio Alfonso. Both measures make clear that AFSCA will not be able to move forward with the appraisal of Clarín’s licences and the call for tenders for its excess licences.

“Anyone following the case would have been able to see, from the very day Sabbatella told reporters he was moving forward with the forced divestment of Clarín, that this would lead to a long legal battle,” media expert Martín Becerra told the Herald.

The ruling

The first thing Judge Cayssials did was to accept Julio Blanck, Nelson Castro, Jorge Lanata, Magdalena Ruiz Guiñazú and other popular Clarín Group journalists as plaintiffs. It was a controversial move, because they were calling to suspend the media watchdog’s resolution on the grounds that the media outlets they work for could change hands. But as AFSCA had argued in its response to the original demand, the law does not grant the right “to choose a specific employer.”

“What’s interesting about this is that these journalists base their case on defending the legitimacy of the Media Law, saying the government is violating its spirit... when we all believed that they — Magdalena (Ruiz Guiñazú) for example — were actually against the very letter of the law,” Becerra said.

The judge also pointed out yesterday that the media watchdog appeared to change its mind half-way through Clarín’s voluntary divestment process — which in turn had begun after the Supreme Court deemed the Media Law constitutional in October 2013.

Even though at first AFSCA “acknowledged it was trying to favour the implementation of the voluntary (divestment) plans... it began the forced divestment process” of Clarín’s excess licences on October 8, 2014 without proper notice, the ruling explained.

His preliminary injunction, the magistrate concluded, seeks to avoid the “irreversible harm” that would result from selling Clarín’s licences, whether one counts the 237 that AFSCA claims the conglomerate holds or the 158 the group recognizes as its own. The move — a logical part of the forced divestment process as set by the law passed in 2009 — includes taking the case to the National Appraisal Tribunal (in order to put a value on the affected assets) and a call for tenders for the excess licences.

What’s Next?

Hours after the ruling was known, the media watchdog issued a news release in which Sabbatella spoke about the historical perspective, seemingly acknowledging the case would be long.

“History will remember (the judges who provided the injunctions) as employees of political and media powers who used twisted legal arguments to guarantee impunity and privilege to media monopolies,” the AFSCA chief said.

The national government may now call to join two cases together as it challenges the preliminary injunction — but the last stop of this train is the Supreme Court.

In other words, yesterday’s decision was the last nail in the coffin for those who wished to witness a quick implementation of the anti-trust mandates of the Broadcast Media Law.

The president’s anti-trust dreams — shared by many non-Kirchnerite activists — have come to an end, this time for good. At least for her administration.

Proposed overhaul comes after incomplete 2001 law and several failed attempts

The all-out intelligence war that has plagued the country over the past few weeks has led President Cristina Fernández de Kirchner to call for a wholesale reform of the secret services.

For many this reform is long overdue. Over the past few days, the Herald has talked to experts about the issue, who explained possible reasons for the lack of concrete action on this matter and emphasized that it is essential to differentiate between a mere shakeup of top leaders and a comprehensive, democratically minded reform of the intelligence sector.

“Since its origin, the Intelligence Secretariat has been linked to military power. In fact, the agency strengthened with each military dictatorship,” sociologist and National Scientific and Technical Research Council (Conicet) researcher Paula Canelo told the Herald.

It was Juan Domingo Perón who created the relatively small State Intelligence Coordination (CIDE), but dictators Pedro Aramburu — head of the “Revolución Libertadora,” the military government that overthrew Perón in 1955 — and Juan Carlos Onganía expanded its objectives and personnel, renaming it the State Intelligence Secretariat (creating the now-famous acronym SIDE), a structure that lasted until 2001.

Canelo, one of the country’s foremost experts on military issues, said the turning point was the 1976 coup d’état, after which the spy agency became one of the major limbs of the repressive regime led by Jorge Rafael Videla.

When democracy returned to the country and Raúl Alfonsín took office in 1983 there was an authoritarian character to much of the intelligence arm of the government.

Under Alfonsín, the SIDE remained one of the few areas that was granted a confidential budget, able to spend money at will without oversight, Canelo recalled. The intelligence agent Raúl Guglielminetti, for instance, was even part of the presidential security detail.

“Starting in 1984, the government tried to purge the SIDE, sweeping aside high-ranking officials from the secretariat, because it knows the intelligence agency is one of the offices still dominated by the Armed Forces.”

Their response was almost immediate.

“The level of political dispute, attacks and internal upheaval was very acute. It was quite clear that Alfonsin’s effort to purge the agency had resulted in a dramatic increase of the so-called ‘unemployed workforce’ of former spies,” the expert added. “This is one of the keys as to why governments would not dare to implement reforms of the intelligence system.”

Too many powerful people without jobs.

An incomplete ‘basic consensus’

The intelligence system during the conservative government of Peronist leader Carlos Menem was further damaged by the 1994 bombing of the AMIA Jewish community centre as the SIDE played a major role in the cover-up of the case, said Paula Litvachky, director of the justice and security area of the CELS human rights organization.

Former car dealer Carlos Telleldín was illegally paid US$400,000 by former federal judge Juan José Galeano to provide a false statement to implicate Buenos Aires province policemen in the attack — money that came directly from the SIDE coffers.

“In the AMIA case this was pretty clear, when we note the relationship between special prosecutor Alberto Nisman and some areas of the Intelligence Secretariat. The very Judge (Rodolfo) Canicoba Corral talked about these ties,” Litvachky added.

But before purging the SIDE, democratic governments faced another titanic task: creating a single, national intelligence system, because “the partial reforms that took place during these years were the result of immediate political needs,” Canelo said.

The National Defence Law was approved in 1988, following the Carapintada Army mutiny led by Aldo Rico. The Domestic Security Law came next, approved in 1991, in the midst of the attack on the La Tablada barracks. And then there was the National Intelligence Law that had been quickly approved in November 2001 during the administration of Fernando De la Rúa — and was widely seen as a direct regulatory response to the September 11 terrorist attacks.

According to the Conicet expert, one of the greatest achievements of that legislation — which transformed the former SIDE into the Intelligence Secretariat, or SI — was preventing the military from taking part in domestic security affairs. Other than that, it failed, stopping short of the most important task.

“It was a national intelligence system that was based on a basic consensus. But it was not thought of as the legal framework for democratic governance of intelligence.”

“It was a good law, and it meant a step forward because it explicitly forbid anti-democratic practices such as domestic espionage,” Álvarez Ugarte told the Herald.

However, he said, one of the problems with the law is that it concentrates the capacity to wiretap private communications inside the Judicial Observations Office (DOC), referring a department working for the courts best known as the “Ojota.” (Fernández de Kirchner called for the dissolution of this department last night as part of her broad intelligence overhaul).

“This concentration means that no security force is — theoretically — able to intercept private communications and that any judge who wants wants to authorize a wire-tap must do it through the Intelligence Secretariat, an organism that is controlled by the Executive Branch.”

Small problem, big problem

The ADC expert brought up the issue of the internal intelligence rift, that not only includes veteran spy Antonio “Jaime” Stiusso, a high-ranking intelligence official who has outlasted all the administrations since the early 1970s — including 12 years of Kirchnerite governments.

This battle also involves Army Chief César Milani, a former head of military intelligence, who’s reportedly more trusted by the president than the SI itself. It may also explain the intelligence shake-up of last December, when SI’s chief Héctor Icazuriaga and his number two, Francisco Larcher lost their positions.

“In our last reports we talked about cases of abuse involving former SI agents that have become part of a network of self-employed spies, as well as (cases of abuse) by Border Guards and the Federal Police,” Álvarez Ugarte said.

The problem goes beyond the SI and also includes security forces and the Armed Forces, he concluded.

In that sense, Canelo says it’s necessary to distinguish between two problems.

“One thing is to clean up the mess, to conduct a sweeping purge (of the agency). But there’s another level that involves creating a democratic national intelligence system.”

Uruguay media law: a better model for the region?Experts challenge NGO report, say Argentine regulation was tailored from the same patterns

por Federico PooreBuenos Aires Herald, 19-01-2015

The nonprofit Reporters Without Borders (RSF) has said that the Audiovisual Communication Services Law approved by Uruguay’s Congress in December “could become even more of a regional model” than the one approved by the Argentine Congress in December 2009.

Experts consulted by the Herald, however, aren’t so sure.

The nonprofit Reporters Without Borders (RSF) seems to think so, noting in a recent document that the Uruguayan anti-trust regulation “could become even more of a regional model of broadcasting regulation” than the one approved by the Argentine Congress in December 2009.

Experts consulted by the Herald, however, aren’t so sure.

“The two laws are very much alike,” said media expert Martín Becerra. “They were even inspired by the same document — the Doctrine of the Inter-American Court of Human Rights regarding Freedom of Expression.”

This puts the Uruguayan and Argentine media regulations in the same basket, far from the more controversial regulation passed in Venezuela and Ecuador in the last few years, Becerra explains.

Guillermo Mastrini, a communications professor at the Buenos Aires and Quilmes universities, said that the politically costly debate over the Broadcast Media Law in Argentina was necessary for the Uruguayan experience.

“If you see the arguments the proponents of the new regulations in Uruguay faced, you’ll see that they’re the exact same claims brought up by the opposition when the law was discussed here,” Mastrini told the Herald.

A close look at the laws, however, does reveal a few key differences.

URUGUAYAN LAW ‘MORE GRADUAL’

Becerra explained that lawmakers from the ruling Broad Front (FA) clearly tried to learn from the most problematic aspect of the Argentine regulation: divestment.

“The law passed across the River Plate is more gradual,” the expert — who works as an adviser to Marcelo Stubrin, an opposition representative at the AFSCA media watchdog — said.

While in Argentina the infamous Article 161 provided a time frame of one year for divestment of excess licences, Article 160 of the Uruguayan law says big media outlets will be given “five years since the law enters into effect to complete the transfer” of excess licences to new owners.

Once it was approved in 2009, media giant Clarín Group challenged the Argentine regulation — and one of the things the firm led by CEO Héctor Magnetto argued was that the time frame outlined in the law violated key principles of legal certainty.

Another key aspect of the law passed by the administration of President José “Pepe” Mujica is that it forces cable TV operators to include at least three Uruguay-based TV stations in its grid.

“This will result in a de facto creation of three new television channels, because these outlets will not be created through a bidding process,” Becerra said.

Becerra agreed with Mastrini though that this concession to local big business “did not prevent the attacks against the anti-trust regulation.”

ARGENTINE REGULATION ‘MORE COMPREHENSIVE’

Santiago Marino, Communication professor at the universities of Buenos Aires and Quilmes, is also sceptical about the claim that the Uruguayan law is a better model for the region.

“For starters, Uruguay has passed a specific regulation for non-commercial media... and I believe one comprehensive law is better than two complementary regulations.”

In the case of Uruguay, Marino said, the original enforcement regulator was a body led by the Industry, Mining and Energy Ministry — that is, the Executive branch. (The parliamentary debate created an Audiovisual Communication Council, allowing members of Congress into the regulatory body).

The Argentine Media Law, on the contrary, “is much more clear and specific in terms of participation of members of Congress in both the media watchdog and the state-owned media,” he argued.

There are, however, some small parts in which the regulation passed by the Mujica administration could be seen as an improvement on the 2009 Media Law.

“It’s more comprehensive when definining the object of regulation. And in article 12 it declares a guarantee of universal access to radio and TV,” Marino said.

The Uruguayan law also defines some references to journalists’ rights, which the Argentine law does not because it already has its own Journalist Statutes enacted in 1944 and last amended in 1975.

As Daniel Lema, president of the Uruguayan Press Association, told the Herald earlier this month, lawmakers of his country included a “conscience clause” for the first time.

“It says that while exercising their profession journalists have the right to deny the use of their image, voice or name to contents originally of their authorship that have significantly been changed without their consent,” Lema explained.

Last month, the Broadcast Media Law turned five. It was a bittersweet celebration, marked by the decision to move forward with the forced divestment of the Clarín Group and the approval of the adjustment plan filed by Spanish media giant Telefónica.

With the Clarín case stalled in the courts, the extent of the changes produced by the regulation passed in 2009 are up for debate once again. Communications expert Guillermo Mastrini welcomed the Herald at his home in the City neighbourhood of Colegiales to discuss how the Media Law has affected the lives of Argentines and whether a new government could get rid of the measure’s anti-trust mandates.

It’s been more than five years since the Media Law was approved. What has changed since?
The law is a major step forward and we should not spurn it. New rights have been granted. A law, however, does not define policy — it’s just the legal framework that you can use to build a communications policy. In that strict sense, the law is valid and has busted the myth that it was impossible to impose new regulations without following the dictates of big media groups. It could be argued, though, that the government went from considering only the interests of big corporations to not taking them into account at all. But the experience has been quite an example for Uruguay, which finally approved its own broadcast media law.

What were the shortcomings of this experience?
Evidently, we’re not dealing with a law that went after the interests of (Spanish conglomerate) Telefónica nor of some US companies. But that’s part of a more specific analysis.

Would you say the spirit of the law has been violated?
For the law to be fully implemented we need policies that are consistent with the law. But that did not take place. The democratic will to improve communications in the country set out by the Broadcast Media Law has not found its expression in the communications policy carried out by the national government once the law was approved. Then there are more minor things.

Such as...?
We’re slowly seeing more (audiovisual) productions from the provinces. It’s a long process because it involves training workers, generating an audience... But I still believe the AFSCA media watchdog could have done more for that. I’m also opposed to the idea of reducing the communication policy to a mere competition with the Clarín Group, which has led us nowhere. This is a key weakness. This failed policy ends up undermining the law itself because the government is not able to show any results. And it seemingly allows future governments to say: “Why should I abide by the law if there was a discretionary implementation of regulation by the same government that approved it?”

As for the very heart of the law — its anti-trust mandates — one can conclude that, five years on, only a few conglomerates were forced to sell some of their less important media outlets.
Yes, there were no significant changes on this issue. Some purchases did take place, but mostly by businessmen close to the government. Meanwhile, we have not witnessed major changes in the audiences, who have remained loyal to traditional media.

Let’s briefly analyze the Telefónica case. If you were a director at AFSCA, would you have approved the plan the company filed in order to comply with the Media Law?
I believe its most flagrant violation is that it is at odds with the law’s mandates on foreign ownership. The Attorney General’s Office has been very clear on this point: the only bilateral foreign investment agreement regarding media outlets is the one that Argentina signed with the US. The other point of contention — the article that bans public service providers from holding a broadcast licence — was partly spared by the new Telecommunications Law. I mean, the law had not yet been passed when AFSCA approved Telefónica’s plan, but it could be argued that at this point (AFSCA chief Martín) Sabbatella was following the spirit of the new regulation. But foreign ownership was clearly a problem and it’s a shame that the government approved Telefónica’s plan, because many people are using this case in order to say the law was plain bad. The letter of the law says media concentration is bad, but the message we’re getting here is that there are good monopolies and bad monopolies.

What about the new telecommunications regulation, the Digital Argentina bill, that was quickly passed into law last year?
The first conclusion I have come to is that it avoided the participation of the public. The idea that citizens should take part in public forums and debates — one of the cores of the Broadcast Media Law — was outright nixed by the government. There were a small number of sessions in the Senate and not a single hearing in the Lower House of Congress. There were no visible negotiations with other parties. In fact, there was no support from other political forces. But the main problem I see with Digital Argentina is that the regulatory decree ends up being more important than the law itself. And that’s a problem.

The regulatory decree is in the sole hands of the president, which provides some room for discretion...
That’s exactly why I say it’s a problem. No one was completely happy with the law — business leaders because new regulations do not benefit a particular set of companies (it provides benefits on one side and costs on the other) and cooperatives because they don’t feel they have been particularly benefited either. It can’t even be described as a Victory Front (FpV) bill, I would say it’s a bill sponsored by one sector of the government.

Some FpV senators had to deal with resistance from a few of the cooperatives operating in their home districts...
Well, you can see (the outcome of) that conflict if you read the amendments that were made to the law. All changes improved the original draft. But I don’t think it improved enough to say it’s a law that respects basic standards.

The administration will leave office in 10 months. What do you think will happen with the Media Law?
I don’t think the law can be so easily reshaped, especially because Congress will be divided after December. The Victory Front is likely to remain as the main congressional bloc, mostly thanks to its previous electoral performances. Any changes will need a broad consensus — and one thing is agreeing to disagree but agreeing to agree is quite another.

What about the forced divestment of Clarín? Will that train have left the station once the next president takes office?
In a scenario where there is less of a political will (to move forward with Clarín’s divestment), I believe the process will slow down or even be nixed altogether.

The AFSCA media watchdog led by Martín Sabbatella finally approved last night the plan filed almost two years ago by Telefe to comply with the Broadcast Media Law.

It was a five-to-two snap vote, with criticism from opposition representatives Gerardo Milman (GEN) and Marcelo Stubrin (UCR).

The divestment plan presented by Spanish conglomerate Prisa — owner of several radios throughout the country — was also approved. And while the vote was unanimous AFSCA board members had “different arguments for their votes,” Milman told the Herald last night.

Both companies have vowed to sell their excess broadcasting licences to meet the anti-trust requirements of Article 45 of the Media Law, which establishes that no radio or TV company can have control of more than 35 percent of the total market share.

The meeting at the AFSCA headquarters in downtown Buenos Aires lasted for more than five hours. It began at 4pm, but at press time representatives from the board of directors — including Ignacio Saavedra, Néstor Avalle, Eduardo Rinesi and Claudio Schifer — were still discussing the last few issues on the agenda, sources at the meeting explained.

Ties with Telefónica

As the Herald reported earlier this year, the main point of contention regarding the case of Telefe (the country’s most popular broadcast TV channel along with Clarín Group’s Channel 13) was Article 24, which bans providers of public utilities from holding a broadcast licence.

Critics explained that while Telefe and Spanish telecommunications giant Telefónica do not have any cross-ownership of shares, they’re both subsidiaries of the same parent company, Telefónica de España.

Telefónica runs a major landline phone service and thus should have abandoned either this line of business or its broadcast services.

Last month, AFSCA proposed a resolution requesting Telefe’s plan to “be formally declared admissible” on the grounds of a technical opinion issued by the watchdog’s legal experts.

“The systematic interpretation of the legal order leads us to conclude that Telefé... is authorized to offer audiovisual services,” the opinion read.

Yesterday, Milman and Stubrin challenged AFSCA’s majority opinion. They argued Telefónica was at odds with the premises of the broadcast regulation which was deemed constitutional by the Supreme Court last year, but the resolution was finally passed at yesterday’s seemingly endless meeting, where 207 cases — from radio and TV grants to the placing of new channels in the cable grid — were discussed.

The vote follows a major decision regarding the fate of Clarín, the country’s largest conglomerate, that has been at odds with the CFK administration since 2008. In October, Sabbatella accused the Clarín Group of fraud and announced it will move forward with a forced divestment plan for the company’s excess licences.

Angry by what they described as a lack of access to the documentation supporting those claims before they could vote for or against Clarín’s divestment, Milman and the other opposition director, UCR’s Marcelo Stubrin, abstained from voting and the resolution was passed by a five-to-two vote.